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Thursday, Oct. 11, 2018 12:18 am

A rush to judgment?

Man serving life asks for new trial

 

Another troublesome email has surfaced between U.S. District Court Judge Colin Bruce and the U.S. attorney’s office headquartered in Springfield.

Attorneys for Jason Gmoser, a convicted child pornographer sentenced to life in prison by Bruce in 2017, last week asked for a new trial based on an email the judge sent to a prosecutor in his case just one week before his first trial in 2016.

“You’re doing fine,” the judge wrote. “Let’s get this thing done.”

The judge’s message came in response to an email from assistant U.S. attorney Elly Peirson, who had attached proposed jury instructions, a witness list and a list of exhibits. Peirson’s email was copied to defense counsel, but the judge’s response was not.

“While looked at by themselves, the comments may seem innocuous,” wrote Bradley Kraemer, an attorney for Gmoser, in a request for a new trial filed Oct. 2. “However, when viewed in a broader light, it projects the appearance of impropriety. Judge Bruce was a career prosecutor and member of the U.S. attorney’s office. His contact in this case and others creates the image that he still has a connection to that office. … It creates the appearance of a sense of team or unity between the judge and the U.S. attorney’s office. The appearance of impropriety in this case creates an appearance of bias against the defense and is contrary to the foundation of our legal system itself.”

Gmoser’s motion marks at least the second request for a new trial since emails between Bruce and employees of the U.S. attorney’s office have come to light. In August, Sarah Nixon, convicted of kidnapping in Bruce’s court in 2016, asked for a new trial based on emails between the judge and Lisa Hopps, a paralegal in the U.S. attorney’s office, while Nixon’s trial was pending. In the emails, Bruce criticized the performance of prosecutors and assessed odds for conviction. The judge recused himself in August and asserted in a court filing that the emails were innocuous. Nonetheless, U.S. District Court Judge James Shadid, chief judge for the Central District of Illinois, removed Bruce from all criminal proceedings in August, two days after Illinois Times reported on the exchanges.

In the Nixon case, the U.S. attorney’s office disclosed the emails in a May letter to her lawyer, who subsequently filed a request to supplement the court record to introduce emails between Bruce and Hopps, with the judge’s emails attached as exhibits. Bruce denied the request, even though it was not opposed by prosecutors, and he sealed his ruling, as well as a document filed by prosecutors saying they had no objection to supplementing the record with emails between the judge and Hopps. The motion to supplement the record also was sealed. Shadid, who took jurisdiction of the case after removing Bruce, unsealed the documents last month at the request of Illinois Times.

The 2016 email from Bruce to Peirson in the Gmoser case was disclosed to the defendant’s lawyer in a Sept. 19 letter signed by Peirson, who also provided a copy to Gregg Walters, an assistant U.S. attorney who is the office’s ethics adviser. Walters declined comment.

According to Peirson’s letter, the U.S. attorney’s office, prompted by the discovery of emails in the Nixon case, has conducted a search of emails for any messages exchanged between Bruce and employees at the federal prosecutor’s office and examined messages for potentially inappropriate communications between Bruce, who was a federal prosecutor for 24 years before becoming a judge in 2013, and employees of the U.S. attorney.

Steven Beckett, a University of Illinois law professor who also is a practicing criminal defense attorney, said that he recently received two letters from the U.S. attorney’s office disclosing messages between the judge and employees of the federal prosecutor’s office. He said he deemed the exchanges inconsequential. “Incredible,” Beckett remarked when read the 2016 email from Bruce to Peirson in which the judge wrote, “Let’s get this thing done.”

Lawyers have ethical obligations to report misconduct by judges, but precisely what conduct would trigger a required report and who should receive a report isn’t clear under rules of professional conduct promulgated by the Illinois Supreme Court. Under the rules, a lawyer who knows that a judge has “committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.” The rules don’t define “substantial question” or “appropriate authority.”

Jim Grogan, deputy administrator and chief counsel for the Illinois Attorney Registration and Disciplinary Commission, an arm of the state Supreme Court that investigates allegations of wrongdoing by lawyers, said that he couldn’t comment on whether the ARDC is looking into emails that passed between Bruce and any employee of the U.S. attorney’s office. Speaking generically, Grogan said that the line between OK and not-OK, when it comes to communications between lawyers and judges, often hinges on the perspective of the opposing party. “The way I phrase it is, if I was a lawyer on the other side, would I want to know that?” Grogan said.

In a written statement Sharon Paul, spokeswoman for the U.S. attorney’s office, confirmed that the U.S. attorney’s office has searched its email system for emails between Bruce and employees that might be inappropriate. “Further, the office is reviewing procedures and practices to ensure each of our employees upholds the highest ethical standards of the Department of Justice,” Paul wrote.  

Contact Bruce Rushton at brushton@illinoistimes.com.

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